There has been a growing concern about the practice of certain parties
charging fees from Federal agencies or their applicants for their participation
in the Section 106 process. In particular, the issue has emerged in the
context of Indian tribes and their participation in the process. While
the question of fees has many dimensions that will require more detailed
attention over the long term, this policy statement is intended to provide
some immediate guidance on the current tribal issue.

Background

The concern that has arisen centers around requests by Indian tribes
to be compensated for activities connected to the Section 106 process.
To address the issue, there are certain fundamental points that need to
be acknowledged:

Neither Section 106, 16 U.S.C. § 470f, nor ACHPs
regulations, 36 C.F.R. Part 800, require a Federal agency to engage
anyone to provide data or information for Section 106 compliance. While
the agency does have an obligation to obtain necessary information to
fulfill its legal duties, it has full discretion regarding the means
used to meet this obligation.

Neither Section 106 nor ACHPs regulations impose a duty
on an applicant for Federal assistance or approval to develop information
and analyses for Section 106 compliance or to engage contractors to
so do. If a Federal agency has the authority to impose the development
of such information and analyses on the applicant and chooses to do
so, the legal basis for that obligation on the applicant lies in the
Federal agencys authorities and does not derive from ACHPs
regulations.

The National Historic Preservation Act (NHPA) does obligate a Federal
agency to consult with Indian tribes that attach religious and cultural
significance to historic properties when the agencys undertakings
will affect such properties. ACHPs regulations specify
how that consultation takes place.

The NHPA and ACHPs regulations authorize Federal agencies
to contract with others, including Indian tribes, to provide information
for complying with Section 106, and encourage agencies to actively involve
Indian tribes in the Section 106 review process. However, neither authority
requires Federal agencies to pay for any aspect of tribal nor other
consulting party participation in the Section 106 process.

The Role of Indian Tribes in the Section 106 Process

An underlying policy of the NHPA and ACHPs regulations
is that historic resources of significance to Indian tribes deserve full
consideration in the Federal planning process and that Indian tribes possess
a special perspective on and relation to these resources.

This policy finds expression in provisions of the Section 106 regulation
that encourage agencies, when identifying historic properties, to seek
information from Indian tribes on those historic properties that have
religious and cultural significance to them and that establish a consultative
role for Indian tribes, both on and off their tribal lands, which provides
them an opportunity to make their views known throughout the Section 106
process.

These two tribal roles are not treated the same when it comes to compensation,
although the line between them may not be sharp.

Facilitating Tribal Participation

At the outset, it must be stressed that ACHP encourages Federal
agencies to take the steps necessary to facilitate tribal participation
at all stages of the Section 106 process. These steps may range from scheduling
meetings in places and times that are convenient for Indian tribes to
paying travel expenses for participating tribal representatives.

Indeed, Federal agencies are strongly encouraged to use resources, consistent
with their authorities, to overcome financial impediments that Indian
tribes may have to effective participation in the Section 106 process.
Likewise, applicants for Federal assistance that assume responsibilities
for carrying out Section 106 functions are urged to do the same.

However, this encouragement by ACHP is not a legal mandate nor
does any portion of the NHPA or ACHPs regulations require
an agency or an applicant to pay for any form of tribal involvement.

Tribal Consultation

Throughout the Section 106 process, the regulations impose on Federal
agencies (and applicants who assume an agencys duties) an obligation
to consult with Tribal Historic Preservation Officers and Indian tribes.
These occasions range from the initial scoping of Section 800.3, through
the identification, evaluation and effect assessment of Sections 800.4
and 800.5, to the resolution of adverse effects in Section 800.6.

The purpose of this role is to give the Indian tribe an opportunity to
get its interests and concerns before the agency. In these situations,
the Federal agency obligation is to seek and consider the views of participating
Indian tribes. This means it must make an effort to solicit a tribes
opinions and factor them into the decisions that the agency must make
on the project.

The consultation requirement thus gives an Indian tribe the ability to
advocate the outcome it would like to see the agency ultimately take in
the final project decision.

When the Federal agency or applicant is seeking the views of an Indian
tribe to fulfill the agencys legal obligation to consult with a
tribe under a specific provision of ACHPs regulations, the
agency or applicant is not required to pay the tribe for providing its
views.

If the agency or applicant has made a reasonable and good faith effort
to consult with an Indian tribe and the tribe refuses to respond without
receiving payment, the agency has met its obligation to consult and is
free to move to the next step in the Section 106 process.

When Payment Is Appropriate

When, during the identification phase of the Section 106 process, an
agency or applicant seeks to identify historic properties that may be
significant to an Indian tribe, it may ask for specific information and
documentation regarding the location, nature, and condition of individual
sites, or actually request that a survey be conducted by the tribe.

In doing so, the agency essentially asks the tribe to fulfill the role
of a consultant or contractor. In such cases, the tribe would seem to
be justified in requiring payment for its services, just as any other
contractor. The agency or applicant is free to refuse, but retains the
obligation for obtaining the necessary information for the identification
of historic properties, the evaluation of their National Register eligibility,
and the assessment of effects on the historic properties.

Ultimately, the Federal agency must be able to demonstrate that it made
the reasonable and good faith effort that Section 800.4(b)
of the Section 106 regulations requires.

Summary

While ACHPs regulations encourage the active participation
of Indian tribes, they do not obligate Federal agencies or applicants
to pay for consultation. If an agency or applicant attempts to consult
with an Indian tribe and the tribe demands payment, the agency or applicant
may refuse and move forward.

If, on the other hand, the agency or applicant seeks information or documentation
that it would normally obtain from a professional contractor or consultant,
they should expect to pay for the work product.

When the line between the two is unclear, the agency or applicant is
encouraged to act in a manner that facilitates, rather than impedes, effective
tribal participation in the Section 106 process.